WHEN INDIA signed a landmark agreement in July 2005 for "full civil nuclear cooperation" with the United States in exchange for a specific set of commitments, there were three sets of concerns that analysts on the Indian side raised. The first related to technology. Would the deal hamper India's indigenous three-stage plans in the civil nuclear field by increasing our import dependence and subjecting our reactors and research facilities to intrusive international inspections? The second set of concerns was linked to `national security.' To the extent to which nuclear weapons — rightly or wrongly — have come to occupy a central position in the country's security calculus, would the deal weaken or cap the Indian nuclear weapons capability? Finally, there were political and strategic concerns. What hidden costs did the U.S. offer of nuclear cooperation bring with it? Was India running the risk of getting drawn into a web of alliances the U.S. is building in Asia, thereby compromising its own strategic autonomy?

These questions — especially on the fast-breeder — were intensively debated in the past year and were perhaps a useful input into the difficult negotiations India and the U.S. had on the question of implementation. But with the deal now entering its final phases, it is useful to assess whether the three sets of concerns raised last year retain any validity.

Last week, a draft law allowing the U.S. President to authorise nuclear sales to India sailed comfortably through key Congressional committees in both the House and Senate. Its passage by a full sitting of the two Houses of Congress is now more or less assured. Simply put, the draft law envisages the President waiving existing restrictions on nuclear trade once he makes a "determination" that India has fulfilled a number of conditions. These conditions — which differ slightly and crucially in the Senate and House versions of the Bill — ostensibly spring from the July 2005 agreement but contain some additionalities that the Indian side might find problematic. Moreover, the grant of presidential waiver authority comes interwoven with other legislative directives to the President, some of which are harmless as far as India is concerned but some of which are definitely cause for concern.

To get a better sense of the additionalities, it is instructive to compare the operational section of the original draft of the proposed law — shared with India as part of the agreement on its separation plan, and tabled in both Houses in March as S2429 and HR 4974 — with the versions currently marked up. These spell out the conditions India must fulfil for the President to authorise nuclear commerce.

Problematic changes

On at least four counts, the changes made are problematic. Whereas the first draft spoke of India filing a declaration with the IAEA regarding its civil nuclear facilities, the Senate Bill says the declaration must be "complete" and include nuclear "materials" as well. The insistence on "complete" is odd since the word has been used internationally only in respect of the IAEA declarations filed by Iraq and Iran — countries accused of having a clandestine nuclear programme. Since the basis of the India-U.S. agreement is the de facto acceptance of India's military nuclear programme, it is meaningless to speak of a "complete" declaration. Perhaps the intention is to bring nuclear "materials" produced in the past by facilities going on the civilian list under the purview of safeguards. Either way, the wording of this clause is troubling.

Secondly, on safeguards, the original draft spoke of India accepting "IAEA practices." The Senate has amended this to add acceptance by India of IAEA "standards and principles" as well. Until now, the assumption was that the country would sign an "India-specific" safeguards agreement which would reflect the fact that India is not a non-nuclear weapons state (NNWS) under the NPT. Thus, not all nuclear facilities would be safeguarded and those that were offered would be on the basis of IAEA "practices" whose precise contours would be the subject of negotiation with the agency. The new insistence on adherence to IAEA "standards and principles," however, is intended to push India towards a tighter inspections regime for the facilities to be safeguarded, presumably in line with the intensity reserved for NNWS.

Thirdly, the original draft spoke of India making "satisfactory progress toward implementing an Additional Protocol that would apply to India's civil nuclear program." In the new Senate version, the reference to "India's civil nuclear program" has been deleted and "satisfactory progress" has been changed to "substantial progress." In the Senate Bill, the term "Additional Protocol" has been defined as a "protocol ... based on a Model Additional Protocol as set forth in IAEA information circular (INFCIRC) 540." Until now, the Manmohan Singh Government has insisted it would sign only "an" additional protocol rather than "the" additional protocol. But the Senate committee, by deleting the reference to India's civil nuclear programme, has raised a question mark over Washington's willingness to allow India to invoke — as the U.S. itself has done — national security exclusions to override the intrusiveness of INFCIRC 540.

Fourthly, in the original draft, India was expected, in line with the July 2005 agreement, to support "international efforts" to limit the spread of enrichment technology. The House version has changed this to "supporting United States and international efforts." One of "efforts" the U.S. is considering to limit the spread of enrichment technology, for example, is to sanction or bomb Iran. Another is the Global Nuclear Energy Partnership (GNEP), in which President Bush told the Asia Society in February that India would be treated not as a "fuel cycle state" but as a "recipient." Is India expected to support such efforts?

In any event, the reference to enrichment technology is especially problematic because of the Senate's insistence on explicitly ruling out the sale of enrichment-related technologies to India. The July 2005 agreement had spoken of the U.S. adjusting its laws to enable "full civil nuclear energy cooperation and trade with India" but what is being proposed is something less than "full." Indeed, in its `Declaration of Policy,' the Senate Bill decrees that it shall be U.S. policy "to work with members of the NSG, individually and collectively, to further restrict the transfers of such equipment and technologies, including to India." Elsewhere, the Bill explicitly prohibits the sale to India "of any equipment, materials or technology related to the enrichment of uranium, the reprocessing of spent fuel, or the production of heavy water" except if India joins the GNEP or a similar IAEA-sponsored programme.

Taken together, what does the addition and subtraction of a few words in the operational section of the Bill mean? It represents an attempt by the U.S. to dictate the parameters of the safeguards agreement and additional protocol India is to sign with the IAEA. Indeed, to underscore the point and ensure real-time monitoring of the evolving safeguards agreement, the House Bill explicitly tasks the President with not just submitting the final agreement to Congress for approval but also giving monthly reports to it on the "status of the negotiations ... between the IAEA and India."

Apart from safeguards, the Senate version of the Bill has grafted on a separate layer of supervision under the rubric of end-use monitoring. Any nuclear material, equipment and technology exported to India by the U.S. would be subject to not just IAEA safeguards but an end-use monitoring programme to be run by the U.S. The Senate is also insisting that this end-use monitoring should involve U.S. inspectors acquiring the same degree of access as IAEA inspectors "in the event [that] the IAEA is unable to implement safeguards."

The IAEA has a limited budget and would normally prefer to deploy its surveillance resources not in a country like India — which is known to possess nuclear weapons — but in NNWS suspected of having a clandestine nuclear programme. Thus, over a period of time, the periodicity and intensity of active safeguards implementation by the IAEA in India will likely come down. For example, hundreds of facilities in the five NPT-defined nuclear weapons states are safeguarded but the IAEA actively inspects no more than a dozen. It is precisely to guard against such an eventuality that the U.S. is insisting on a parallel unilateral inspections mechanism for any nuclear material it exports to India. And by insisting that the President prepare an annual report on third country nuclear exports to India which do "not meet the standards applied to [U.S.] exports," the attempt will be to force other suppliers and perhaps the NSG as a whole to insist on similar conditions just in case India decides not to purchase equipment from American vendors.

So far, the separation plan prepared by India has managed to exclude civilian experimental and research work vital for the success of the three-stage nuclear programme from the crippling purview of inspections. But the entire effort will come to naught if the country is forced to negotiate a rigid safeguards agreement and additional protocol with intrusive complementary access as the U.S. would like. In the home stretch, India must insist on its sovereign prerogative to negotiate a sui generis safeguards agreement that will not hamper civilian research.

And it must ensure its Additional Protocol mirrors that of the U.S., including a national security exclusion and all the reservations outlined in the "Brill letter" attached by the U.S. to its own protocol.

7 comments:

Mayurdas Bholanath
said...

Siddharth Varadarajan's analysis is incisive and correct.

In July 2005, from foreign soil, Foreign Secretary Shyam Saran proclaimed that the essence of the deal was that India would enjoy the same rights and have the same responsibilities as the US in matters relating to nuclear technology - "Nothing more, nothing less" were his brave words. Subsequently, Manmohan Singh solemnly affirmed this feature of the deal. But we now know that this is not quite true. The US can withdraw any of its nuclear facilities from the (as of now non-existent) inspection regime. India has to wear the millstone of intrusive snooping by US and its proxy IAEA around its neck, in perpetuity. I had expected more focused hot debates on the way people in India have been misled on this issue - but my hopes have been belied so far.

For every item that India buys from abroad, it would have to give a certificate regarding the intended end-use of the item. Any time after its receipt in India, this item would be subject to verification (by the Supplier country/IAEA) that it has been used as per the certificate given by India. This is not just for fuel, but also for any item imported for its nuclear power plants.

Tthe end-use certification and end-use verification provision sought to be reaffirmed in the deal by the US (on the sly, as it were, via the "mark-up" procedure), is no different from the situation that existed during the "sanctions era". So what parity with the US has India gained as a result of the deal? One must expect that US will ensure that not only it, but also the NSG countries will implement the end-use certification / verification provision in conjunction with the "pursuit" principle in a most rigorous manner, thus infringing upon the privacy of contracts of Indian suppliers to our nuclear power programme and possibly threatening their IPRs too.

Will there be a time when India will seek end-use certification and carry out end-use verification in the US or a NSG Supplier country? Before we come to that, perhaps we have to answer the question - when will US buy any high technology item from India? For this to happen India must achieve true technology independence; the sellout deal will only surrender even the modicum of hard-earned progress in nuclear technology made by India.

The best option for India is to get out of this deal. It may also be a good idea to conduct one or more nuclear tests now rather then keeping that option open for the future. Looking at the way the US-India is going India may never get another chance to conduct nuclear tests. Actually testing now really tests the constraints of this deal.

I am not sure it is in India's interest to test nuclear weapons now, or to necessarily walk away from the deal.

Consider what happens if India tests today. All offers of cooperation will be withdrawn and thee may even be sanctions.

But the points raised in Mr varadarajan's article are valid and India should insist on the U.S. reversing its legal language. If US refuses, then India would be well advised to walk away from the deal.

There is a need for reality check here. We have not signed any international deals and you expect that there will be sanctions on India if we do nuclear tests. Do we really have any chance of testing in the future after this deal is signed even if the deal’s text does not contain such a clause? Why are we deceiving ourselves about the clauses rather than simple doing what is necessary. China became a great country only after it became a great nuclear power. India needs to solidify its nuclear weapons first before thinking about sanctions and economy. Business people never understand the importance of security. As we are already noticing the delay and reluctance in testing of Agni III. It will be interesting to see how soon they will do the Agni III test again as the current test is a failure.

Incidentally, "giving up sovereignty" is how Drs Homi J. Sethna and P.K. Iyengar, illustrious chairmen of the Atomic Energy Commission in the mid-1970s and the late 1980s respectively, described Manmohan Singh’s nuclear deal in a July 1 seminar hosted by the Forum for Integrated National Security in Mumbai.

Soon after the 1998 nuclear tests, a US government committee examining the failure of the fabulously-equipped and richly endowed US intelligence agencies to forewarn the White House about the resumption of explosive testing by India, concluded that the Indian nuclear programme and strategic decision-making loops in the government were insufficiently penetrated and the quality of HUMINT (human intelligence) needed upgrading. More recently, Pentagon decided to spend in excess of $300 million annually on "disinformation" campaigns worldwide.

The result of the seamless dovetailing of these two mission areas is reflected, for instance, in the recent unearthing by the Indian counter-intelligence of strategically-placed "moles" assiduously cultivated by CIA, as former senior RAW official, B. Raman, had apprehended early. (Who knows how many more are burrowed in even higher reaches of the Indian policy establishment and where?) And, in the orchestration of public support in India for the nuclear deal via efficient "media management." (Is it a coincidence, honourable exceptions aside, that the bulk of the mainstream English-language Indian print and electronic media supposedly shaping the views of the Indian middle-class have rarely carried articles or presentations critical of the deal?) In attempting to get at the most secret information, highly motivated Indian nuclear scientists and engineers are more difficult to subvert, as the record shows, than politicians, journalists, Indian intelligence agents, civil servants, diplomats, and armed services officers. But this fact may only lead to redoubling of American effort to create a powerful "fifth column."

INDIA needs to do couple of nuclear tests NOW. It will be very difficult to test later.

It will not just be political pressure but, threat of sanction that the united states will impose. They are trying to get leverage by cooperating with in INDIA in all important aspects of defense/space and technology.

We will become more venerable as we cooperate with united states and include their technology in our products or systems. [Remember LCA flight control system retained (stolen) by US lockhead martin which we developed and were testing it on F-16 at lockhead martin aerospace facility, the program was set back by 2 years after 1998 nuclear test as our flight control system was retained by united states]. united states is trying to do the same thing in all areas now.

We should try to cooperate more with the Russians and the French they are more trust worthy as they are tried and tested for their reliability during the time of need. “united states is simply NOT RELIABLE and NOT trust worthy”. [Look at the recent spy scandal (June / July 2006). God only knows how many more CIA spies are their in top posts apart from the known or suspected ones in defense, space, nuclear, strategic and Intelligence establishments. We have already lost defense and strategic plans (navy/air force/ probably nuclear and space) for next 20 years which include our current, future capabilities, current vulnerable points and war/upgradation plans] united states realizes that INIDA is a long term strategic competitor and trying to nip our developing capabilities in the bud by making us dependent on their systems.

They also want to steal our closed fuel cycle technology which they will take at least 10 years if they want to develop on their own to our current standard. Not to mention hundreds of billions of dollars in research spending.

The best way for INDIA is to walk out of this deal. NPT is no longer relevant for INDIA as we are just about 10 years away from full realization of 3 stage nuclear program.

It is not worth to put INDIA's strategic and energy independence in jeopardy JUST FOR 'CHEAP URANIUM'. People around the world do not realize that we do not need technology but, only ‘CHEAP URANIUM’ [Its not that we do not have URANIUM but it will cost us a lot more than buying in open market]. People around the world do not understand how much our technology matured and evolved into one of the safest comparable to the best in the world in last 5 to 10 years.

Looks like Sonia Gandhi, Manmohan Singh and Natwar Singh are bent on de-nuking India. Check their statements from 1998 nuclear tests. All of them are completely aganist nuclear tests and wish to denuclearise India completely.